Massman v. Massman

Appeal
from the Circuit Court of Osage County Honorable Robert D.
Schollmeyer

LAWRENCE E. MOONEY, JUDGE.

The
mother, Nicole Massman, appeals the judgment entered by the
Circuit Court of Osage County granting visitation with her
minor child to the paternal grandparents, Dale and Maranda
Massman. The grandparent-visitation statute requires,
inter alio, that a grandparent be unreasonably
denied visitation for a period exceeding 90 days in order to
obtain court-ordered visitation. The grandparents neither
pled nor proved such a denial of visitation. In failing to
consider this statutory requirement, the trial court
erroneously applied the law. Therefore, we reverse.

Factual
and Procedural Background

The
mother and the child's father, Brent Massman, were
married and had one child, born in 2012. The grandparents,
Dale and Maranda Massman, were the father's parents. The
mother and the father were separated and living apart when
the father died in December 2014, shortly before the
child's third birthday. At the time of his death, the
father had custody of the child on alternate weekends and
every Wednesday night, and the grandparents regularly spent
time with the child during the father's custody time.

According
to the grandmother's testimony, following the
father's death, the grandparents saw the child four times
in January, [1] twice in February, [2] and twice in
March 2015.[3] The grandmother testified that they also
sometimes saw the child at church services, attended parties
at the child's daycare, and were never denied the
opportunity to attend events at the daycare. She stated that
she telephoned the mother, sometimes numerous times per week,
but that the mother did not always call back. The
grandparents filed a petition in mid-April 2015 alleging that
the mother had restricted their contact with the child and
seeking court-ordered visitation with her. The grandparents
sought "at a minimum" an amount of time comparable
to a traditional Siegenthaler schedule: the entirety
of every other weekend, every Wednesday evening, every other
Thanksgiving, days immediately before and after Christmas,
days at Easter, the day before or after the child's
birthday, and two weeks each summer.[4] The grandparents also asked
the court to order the mother to keep them informed regarding
the child's medical condition. The grandparents'
petition did not identify any period when they had been
denied visitation for more than 90 days.

The
grandparents visited with the child on a monthly basis after
filing their petition although they had no visitation for
about 70 days immediately surrounding their petition filing.
The grandmother testified at trial that the time they had
with the child was not unreasonable, but they wanted a set
schedule of visits, including overnight visits with the
child. The grandmother stated that she wanted one weekend per
month with the child, time at holidays and the child's
birthday, and a set schedule.

The
mother testified that after the father's funeral, the
child suffered from nightmares and night terrors, and awoke
screaming some eight to ten times per night. In the year
between the father's death and trial, the child's
sleep situation had improved so that she was awakening only
one to three times per night. The mother testified that she
had no objection generally to the child having overnight
visits with the grandparents and that she was following the
advice of the child's counselor in scheduling visitation
and specifically overnight visitation. The mother also stated
she did not object to, nor had she ever objected to, the kind
of time the grandmother testified that she wanted so long as
the mother's weekend work schedule was considered.

The
trial court found that the mother "restricted the
contact between [the grandparents] and the minor child and
the contact that has occurred is found to be unreasonable by
this Court pursuant to the terms of Section 452.402.1(2)
RSMo."[5] The trial court made no finding that the
grandparents had been unreasonably denied visitation for more
than 90 days, nor did the court acknowledge section
452.402.1(4), which requires such a denial of visitation. The
court granted the grandparents one weekend per month with the
child-with overnight visits delayed until recommended by the
child's counselor-and a holiday schedule. The court also
ordered the mother to inform the child's counselor of the
intent to transition the child to overnight visits with the
grandparents as soon as possible and to provide the
grandparents with updated documentation about the
counselor's recommendations; to inform and update the
grandparents about the child's medical condition; to
inform the grandparents of school and sporting events so that
they could attend; and to allow the grandparents to visit the
child at her daycare or school. The mother appeals.

Discussion

In two
points on appeal, the mother challenges the trial court's
finding that she had denied the grandparents reasonable
visitation, and the trial court's grant of visitation
pursuant to section 452.402. Because we find the mother's
second point dispositive, we address it first.

In her
second point, the mother claims the trial court erred in
awarding the grandparents specific, defined, and enforceable
visitation rights with the minor child because under section
452.402.1(4), only a grandparent who has been unreasonably
denied visitation with the child for more than 90 days is
entitled to court-ordered visitation. The mother contends
that the undisputed evidence showed that the grandparents
were never denied visitation for any period exceeding 90
days.

We will
affirm the trial court's judgment unless there is no
substantial evidence to support it, it is against the weight
of the evidence, or it erroneously declares or applies the
law. Blakely v. Blakely,83 S.W.3d 537, 540 (Mo.
banc 2002); Murphy v. Canon,536 S.W.2d 30, 32 (Mo.
banc 1976). Statutory interpretation is an issue of law that
we review de novo. Blakely, 83 S.W.3dat540.

The court may grant reasonable visitation rights to the
grandparents of the child and issue any necessary orders to
enforce the decree. The court may grant grandparent
visitation

when:

(1) The parents of the child have filed for a dissolution of
their marriage. A grandparent shall have the right to
intervene in any dissolution action solely on the issue of
visitation rights. Grandparents shall also have the right to
file a motion to modify the original decree of dissolution to
...

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